Volume
74
Abstract
Ohio has two levels of felony murder. One is aggravated felony murder, 2903.01(b). It is an approximate equivalent of the common-law felony-murder rule. The other is a felony-murder rule for the lesser offence of simple murder, 2903.02(B). In felony-murder cases prosecuted under Ohio Revised Code § 2903.02(B), the nearly universal practice among the lower courts in Ohio is to ignore certain explicit text in the statute.
To warrant a conviction, 2903.02(B) requires that death have occurred as a proximate result of the defendant’s having committed or having attempted to commit one of many predicate offenses that the General Assembly labeled as an “offense of violence.” The statute further specifies two conditions for a conviction under 2903.02(B). The defendant’s criminal act must be one “that is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised Code.” These two statutes identified in the statute establish the crimes of Voluntary and Involuntary Manslaughter respectively.
With the affirmation by every state court of appeals that has addressed the issue trial courts routinely give no effect whatsoever to the phrase “a violation of.” Instead, they apply 2903.02(B) as if that phrase were not a part of the statute. Only one appellate court has attempted to explain why the precise language of the statute cannot be applied as written.
This article demonstrates that Ohio law regarding statutory interpretation prohibits judges from rewriting statutes in this way. The article then discusses the plain meaning of 2903.02(B) when the text of that statute is read in light of the common usage of the words that the legislature chose in defining the requirements for felony murder and their grammatical structure.
Further, the article analyzes the reasoning used by that appellate court that attempted to explain why it ignored the words of the statue. While the court’s analysis is incontrovertibly correct in detecting an inescapable fault in the statute that the General Assembly enacted, the article explains how the lengths to which the court went in eliminating the defect from the statute exceeded the court’s authority under Ohio law.
Finally, the article parses the implications of the plain meaning of the General Assembly’s reference to voluntary and involuntary manslaughter but which appellate courts have ignored.
Recommended Citation
Richard S. Walinski,
Felony Murder: What Courts Ignore in Ohio Rev. Code § 2903.02(B),
74 Clev. St. L. Rev. Et Cetera
261
(2026)
available at https://engagedscholarship.csuohio.edu/etcetera/vol74/iss1/9